Justice Department Says Rights Law Doesn’t Protect Gays

What Does This Mean For Our Company Employment Policies?

Recently it seems like the legal landscape surrounding issues of “gay rights” is changing every day.  For example, the New York Times recently reported on a brief filed by the Department of Justice that argues federal civil rights laws do not provide any protection against discrimination based on sexual orientation.  With so many moving parts, it can be easy to get confused about what the law requires of you and your business, and how to make sure you are protected against any claims of illegal discrimination.  When creating and amending policies, it is a good idea to keep your employment law lawyer in the loop.

State vs. Federal Discrimination Laws

When making company policies related to discrimination, it’s important to remember that there are two systems involved—the state and federal governments.  Generally, state governments are free to make any laws they want as long as those laws don’t conflict with the federal government’s laws.  In terms of sexual orientation discrimination, federal law is currently a bit of a grey area, but so far neither Congress nor the Supreme Court has decided that federal law makes it illegal to discriminate against someone based on his or her sexual orientation.  That leaves each state free to do pretty much whatever they want.

For example, South Carolina currently has no laws addressing discrimination against someone based on his or her sexual orientation.  North Carolina doesn’t prohibit discrimination by private employers but does have laws requiring the state government not to discriminate based on sexual orientation when hiring. A bit farther north, Maryland has passed laws prohibiting discrimination based on sexual orientation in areas like employment, housing, public accommodations, and credit and lending operations.

What did the Justice Department actually do?

As noted in the New York Times article, by filing its brief the Justice Department has stepped into the current grey area of federal policy on this issue.  With no clear guidance from Congress or the Supreme Court, federal courts across the country have been coming to different and contradictory conclusions.  For instance, the Seventh Circuit (serving Illinois, Indiana, and Wisconsin) has ruled that discrimination based on sexual orientation is illegal, but the Second Circuit (serving Connecticut, Vermont, and New York) ruled exactly the opposite.

Now the Justice Department has decided to add its voice to the mix.  In a slightly unusual move, the Justice Department intervened in a private case in a New York federal court.  In that case, the plaintiff is appealing a ruling against him that federal law did not prevent his employer from firing him because he was gay.  The Justice Department filed a brief with the appellate court stating that the official position of the Department of Justice is that the original court was correct and that federal law does not prevent discrimination based on sexual orientation.

To be clear, the brief does not change the law in any way; it is simply information for the appellate court to consider.  And even with the Justice Department telling the court it doesn’t believe federal law prohibits this discrimination, the court can still decide otherwise…but even if it does, it will only affect the Second Circuit.

Planning for the future

Although right now decisions about sexual orientation discrimination are being left to individual states, there are indications that will change.  Federal law has changed dramatically in recent years.  Although in 1986 the Supreme Court had upheld anti-sodomy laws, it reversed itself in 2003.  In 2015, the Supreme Court ruled that “gay marriage” was to be legal across America.  That same year, the federal Equal Employment Opportunity Commission decided that discrimination based on sexual orientation was illegal in the workplace.

Against that backdrop, the current Department of Justice policy as stated in their brief seems to be going against the tide of history.  Even if the current administration’s policies offer no protection against discrimination against homosexuals, it seems clear that the federal government is on a course to prohibit discrimination based on sexual orientation sometime in the near future, especially with a disagreement among the federal appellate courts.  With that in mind, employers would be wise to begin planning now for any changes that might be required in company policies if federal law changes.

Our attorneys specialize in helping business owners write strong policies to protect their businesses, so if you have concerns about this issue, contact Willcox, Buyck & Williams, P.A. today for a consultation.